Armstrong v HVMC & Ors - [2004] NSWSC 160 - NSWSC 2003 case summary — Zoe

NSWNSWSC

Armstrong v HVMC & Ors

[2004] NSWSC 160

Supreme Court of NSW|2003-04-16|Before: Mr P, Mr J

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Source facts

Court

Supreme Court of NSW

Decision date

2003-04-16

Before

Mr P, Mr J

Source

Original judgment source is linked above.

Judgment (38 paragraphs)

[1]

Introduction 1.1 The framework - the pleadings 2.4 The volenti pleading 5.10 The accident site 7.15 The competitors · Mr Terrence Gordon Flannigan 11.25 · Mr Dain Ramsay 12.27 · Mr Jamie Fulton 14.31 · Mr Ian Michael Jones 15.35 · Mr David Robert Pike 17.41 · Mrs Armstrong (the plaintiff's mother) 18.44 · Mr Armstrong 19.47 The spectators · Mr Peter Lamb 19.48 · Mrs Julie Rita Hawkins 22.54 · Mr Kevin Edward Hollis 23.57 · Mr David John Tydd 24.59 · Mr William Raymond Armitage 25.61 · Mr Scott Rawson 26.65 · Mr Geoffrey Joseph Miles - one of the second defendants 28.68 The ambulance officers · Mr Christopher Pettit 29.73 · Mr Bruce David Moffatt 30.75 The officials · Mr Peter Fletcher 32.81 · Mrs Christine Margaret Dixon 33.84 · Mr Christopher Dixon 35.88 · Mr Greg Reginald Cole 35.90 · Mrs Jenny Cole 37.94 Summary of accident 37.96 The location of the plaintiff 39.100 Mr Fred Schnerring 42.105 Mr John Keast 44.108 The defendants' experts (Messrs Keramidas and Hall) 44.109 Negligence 47.116 Judgment 49.124 Unmarked copy of Ex F 50 Ex 47#2 51

[4]

JUDGMENT (Personal injury; liability - indemnity assessment) 1 MASTER: The plaintiff seeks damages for personal injuries sustained in an accident that occurred on 13 July 1997, when as a 16 year old competing in a motor-cross race, he was thrown from his motorcycle, striking a tree adjacent to the motor-cross race track in the Hastings Valley and suffered serious head injuries. 2 The first defendant/first cross claimant is Hastings Valley Motorcycle Club Ltd (HVMC). The second defendants/second cross claimants are Geoffrey Joseph Miles and Janice Dianne Miles who are the joint owners and occupiers of Lot 7, Molly Milligan's Road, Rolland Plains, now known as 370 Clearfield Road, Dungay Creek Road, Rollands Plains, New South Wales upon which the "Molly Milligan's Motor Cycle Racing Ground" (the track) was constructed and the race took place. During the hearing the cross claim was settled against both the cross defendants, Mr and Mrs Armstrong, the plaintiff's parents. The plaintiff and his parents attended court each day of the hearing. 3 On 13 July 1997, the first defendant conducted a motorcycle race meeting at the Molly Milligan's Motor Cycle Racing Ground. The first defendant conducted the motorcycle race meeting with both the consent and approval of the occupier, the second defendant. The framework - the pleadings 4 It is alleged that both the first and second defendants owed the plaintiff a duty to take care of his safety while the race meeting was conducted and were both under an obligation to the plaintiff to conduct a safe and proper race meeting and to ensure that the track was safe for use by the contestants. It is alleged that the defendants breached their duty to take reasonable care of the plaintiff resulting in the plaintiff suffering serious injuries and disabilities. 5 The particulars of the breach of duty of care are that the defendants: firstly, conducted an "unlawful race meeting" in contravention of s 8 of the Motor Vehicle Sports (Public Safety) Act 1985 (NSW) (the Act) as amended; secondly, conducted a motor vehicle race (motorcycle race) on a motor vehicle racing ground in respect of which there was no licence in force; thirdly, conducted a motorcycle race on a motor vehicle racing ground prior to obtaining a licence or having the track inspected as required by licensing authorities; fourthly, conducted a motorcycle race at a time when there was a safety hazard around the perimeter of the track, namely trees with substantial trunk sizes; fifthly, conducted a motorcycle race that breached safety in that it contained dense vegetation and trees with a substantial trunk size that were within 20 metres of the track; sixthly, conducted a motorcycle race meeting when there were no barriers or appropriate safety devices to protect riders from trees or tree trunks in the case of a collision; seventhly, failed to properly provide or secure crash barriers at the perimeter of the track; eighthly, permitted the race to be conducted with too many participants so that when the race bottlenecked on the first turn collisions occurred resulting in injuries to the plaintiff; ninthly, failed to provide a track of safe design; tenthly, failed to warn the plaintiff of defects in the design of the track; eleventhly, failed to remedy the design defects prior to the race meeting; twelfthly, failed to properly supervise the race; thirteenthly, failed to ensure that the track was approved for racing by the NSW Department of Sport and Recreation; fourteenthly, failed to ensure that the track had been cleared by way of final track inspection and approval by the NSW Police force and representatives of Motor Cycling Australia (NSW) Inc; fifteenthly, failed to maintain safety devices placed or constructed at the ground in such condition so as to ensure that they provided the protection that they were designed to provide for; sixteenthly, allowed a motorcycle race to be held in contravention of the rules of Motor Cycling Australia (NSW) Inc; seventeenthly, failed to ensure that the circuit was licensed by Motor Cycling Australia (NSW) Inc; eighteenthly, failed to provide a race track that was in a safe and satisfactory condition for conduct of motorcycle racing. 6 Grounds 1, 2, 3, 13, 14, 16, 17, and 18 refer to licensing matters and I shall deal with them after the allegations set out in the statement of claim referred to above. The track was designed for 20 participants. At the most there were 15 competitors. There is however, no evidence that the race was conducted with too many participants. This claim fails. However the critical case sought to be made out in negligence was that the track was not of safe design because the trees were too close to the perimeter of the track. In order to ascertain whether the plaintiff has established his case, it is necessary to determine with precision the particular tree that the plaintiff collided with, if he did in fact collide with a tree. There is much lay evidence on this topic and after reviewing the pleadings I will examine this evidence in detail. 7 The defendants deny liability. They plead contributory negligence, namely that the plaintiff voluntarily consented to incurring that risk and waiving any claim in respect of injury, loss or damage caused by their conduct in that firstly, the plaintiff knew or ought to have known of the state and condition of the motor-cross motorcycle racing grounds and their surrounds, of the risk of a motorcycle accident in the course of a race or event, of the risk of injury to participants in a motorcycle race from such an accident, of the risk that a motorcycle and its rider may leave a track during the course of a race or event and the risk that a motorcycle and rider may strike or hit any object on, beside or adjacent to the race track during the course of a race or events; secondly, that the plaintiff was warned by notice at the entrance of such ground "Motorcycle and Motor Cross Racing and Activities are dangerous even to spectators" (I shall refer to this as being "the warning"); and thirdly, that the plaintiff signed a Club Day entry form dated 13 July 1997 which contained the words "motorcycle sport can lead to injury, damage and loss" and "as it stands with all or any short comings hidden or otherwise and in full knowledge that participation can be hazardous" (I shall refer to grounds 1 and 3 above as the "volenti" pleading). 8 Further the defendants claim indemnity by virtue of an agreement in writing dated 13 July 1997 constituted by the Club Day entry form made between the first defendant and the plaintiff, in consideration of a payment of an entrance fee of $25.00. In the said agreement, the plaintiff agreed to indemnify the first defendant, its servants and officials against all claims of liability for any damage, loss or injury he might suffer arising in any way out of his participation in motorcycle race events at the Molly Milligan's Race Track and that the plaintiff participated in such events at his sole risk and responsibility (I shall refer to this as the "indemnity" pleading). 9 The defendants also pleaded that the plaintiff contributed to his injuries by firstly, riding his motorcycle in circumstances which were beyond his capabilities or experience; secondly, failing to ensure that he was able to ride his motorcycle on the race track prior to doing so; thirdly, by travelling at too great a speed in the circumstances; fourthly, failing to stop or slow down in order to avoid collision; fifthly, failing to maintain sufficient control of his motorcycle; and sixthly, failing to take reasonable care for his own safety. I shall refer to the above as the particulars of contributory negligence.

[5]

The volenti pleading 10 The decision in Oran Park Motor Sports Pty Ltd v Fleissig; Teamfox Pty Ltd v Fleissig, [2002] NSWCA 371, a case which concerns go-kart racing, is instructive in relation to inherently dangerous sports and volenti. The statements reproduced below can equally be applied to motorcycle and motor-cross racing which is an inherently dangerous sport. At paragraph 95, Einstein J (with whom Beazley and Hodgson JJA agreed) stated: "…Clearly go-kart racing is an inherently dangerous sport. Equally clearly it is incumbent upon an occupier which elects to hire the racetrack to a third party and nonetheless to discharge its duty of care in respect of the racetrack premises, to take all reasonable steps to ensure that those who would participate in the racing would not be exposed to dangers inherent in the physical set up or condition or mode of use of the racetrack premises and or were inherent in that physical set up or condition absent the taking of special precautions. The danger which inhered in the condition or mode of use of these premises at the material time was clearly identified by the trial judge as present if the pads were not placed upon the racing face of the relevant wall. The reasonable steps which such occupier was obliged to take in this regard, if it was to satisfy its duty of care as occupier to those who would race upon the racetrack, included the occupier being satisfied by the making of relevant contractual arrangements, that the hirer would place the pads upon the racing face of the wall. The steps taken in this regard by Oran Park were limited to a reliance upon Mr Ward acting in a fashion in which, at least upon one occasion, he had been seen to act and importantly, did not include any contractual arrangements whatever imposing an enforceable contractual obligation upon Mr Ward and the hirer to procure and to ensure that adequate procedures were in place for the padding of the racing face of the wall. These steps were far from adequate in the circumstances." 11 Furthermore, at paragraph [104] their Honours stated that in order to succeed in the volenti defence the defendants are required to define the precise risk that Mr Fleissig is alleged to have run, for the reason that they bear the onus of proving that he consented not only to some risk of injury but to the particular risk which culminated in injury. The plaintiff must be shown to have fully appreciated the nature and extent of the risk and not merely the existence of a danger - see also Roggenkamp v Bennett (1950) 80 CLR 292 at 300 per McTiernan and Williams JJ; Canterbury Municipal Council v Taylor & Ors [2002] NSWCA 96 per Ipp AJA at paragraph 144. 12 It was the plaintiff himself who gave evidence that it was not unusual to come off a motorbike. It is an ordinary incident that a racer is thrown off his bike. Also the plaintiff pointed out "rubbing is racing" (t 84). Further, it is also an ordinary incident of motor-cross racing that bikes merge across the track to take the inside of a corner and bump into one another as it is a highly competitive sport (t 139-140). It is generally accepted that there is a fair degree of potential danger involved in motor-cross racing (t 87). 13 The first defendants as occupiers of the racetrack and organisers of the race meeting and the second defendant as occupier owed duties of care to the plaintiff. Thus, for the defendants to discharge their duties in relation to the racetrack, they were obliged to take all reasonable steps to ensure that the participants in the race would not be exposed to dangers inherent in the physical set up or condition absent of special precautions - see Oran Park per Einstein J at paragraph 95 already quoted. At paragraph 119 Einstein J continued: "An occupier for very obvious reasons has long been fixed with the onerous duties of care which is varied with the category to which the particular visitor was held to belong. A high duty of care is imposed on an occupier towards invitees than towards licensees. This par excellence is a set of facts matters in circumstances where the sport was inherently dangerous giving rise to a significant duty of care upon the occupier. As Kirby J pointed out in Woods v Multi-Sport Holdings 2002 186 ALR 145 at 168 para105:

[7]

The accident site 15 In order to determine that the "accident site" was the actual location at which the plaintiff came to rest, the witnesses were shown videos (Exs 13 and 14) and unmarked copies of Ex F that they marked. Most witnesses identified the position where the plaintiff came to rest and the place where the accident occurred by reference to the videos and sketch maps. The locations identified by the witnesses varied markedly. 16 For convenience I have attached to this judgment an unmarked copy of Ex F, which is an unscaled diagram of the track. With the exception of the riders in front and behind the plaintiff who did not see the accident, I have referred to the evidence of the witnesses by the position in which they were standing on the racetrack when the accident occurred. In effect, this will recount the witnesses' evidence of the race in sequential order. I will then critically analyse their evidence and its veracity. 17 The motor-cross track itself was built in 1993. The portion from the start line to the first inside left hand corner has changed since the accident. Some trees were removed from the left hand corner region after the accident. Rows of four-wheel drive tyres (which were painted white) were laid flat at the edges of the track and banded together by nylon binding tape. These tyres indicated the edge of the track. If a single tyre was not tied to the other tyres it was filled with dirt (Mr Miles, t 341). An aerial photograph of the circuit is shown in Ex E. The race circuit commenced with a straight path of a moderate downhill run for approximately 120 to 150 metres then climbing a small rise before the left hand corner. On the straight path there is a divergence in the track which is referred to in this judgment as the "Pee Wee divergence". It is after the Pee Wee divergence that the track goes up an incline (see Ex 47). There are a series of turns, straight paths and jumps on the circuit. The circuit is about 800 metres in length. It is the first left hand turn or corner that is referred to in evidence. This left hand turn has been widened since the accident - see Ex 19. 18 The plaintiff had been riding motorcycles since he was 4 or 5 years old, commencing in the "Pee Wee" class. By the time the plaintiff was 16 years he was an experienced motorcycle rider. The plaintiff and his younger brother practised jumps on a track near their parent's property outside of Taree every afternoon after school. Initially, his father helped the plaintiff tune his bike. By the time the plaintiff was 10 years of age, he was able to tune a bike, which included taking off the wheels, changing tyres and oiling the chains. By 16 years of age the plaintiff worked on his own bike. He could pull a motor down, work on the motor, pull the pistons down and dress the head of a motor. Thus, at the time of the accident, the plaintiff, although only 16 years of age, was an experienced motor-cross rider.

[8]

The accident 19 Between 8.30am and 8.45am on 13 July 1997, the day of the accident, the plaintiff together with his mother, father and younger brother, Darren, arrived at the second defendant's racetrack. The plaintiff arrived at the track a bit late. The Armstrong family drove through the gate to the second defendants' property. There was a notice on the entrance gate. Mrs Armstrong, Mr Lamb and the plaintiff gave evidence that they did not see the notice. It was a fine day. The plaintiff filled out the entry form (Ex D). He did not read anything under the word "indemnification". He requested that his mother sign the form and pay the fee, which she duly did. The plaintiff was wearing nylon racing pants, a long sleeved shirt, a full helmet, gloves and goggles. He also wore a kidney belt, knee and elbow guards and boots (t 15). The plaintiff and the other competitors presented their bikes for inspection by race officials in order to be permitted to compete in the races. A group of about 6 which included Club officials, competitors, including the plaintiff and Mr Lamb walked around the circuit to familiarise themselves with its layout. The competitors went through some practice laps prior to the commencement of the races. The plaintiff's mother observed that the plaintiff completed three warm-up laps. 20 The plaintiff was a competitor in the first race of the day. There were approximately 11 competitors lined up on the start line. The plaintiff was riding his CR 250 Honda motorcycle (as shown in photograph Ex G). At the start line, the plaintiff was positioned in the centre of the field. The starter Mr Armitage held up a sign to say 15 seconds to go before the start. He turned the sign around to show there was 5 seconds to go before the start. The start line was very noisy as the bike engines were being revved up ready to go. The starting gate was erected in front of the start line about 2 feet high and located 2 feet in front of the start line. The race started at about 10.40am. After the five seconds had elapsed the gate dropped away towards the riders and disappeared into the ground (t 12). The plaintiff has little recollection of the race after this point. The lay witnesses' accounts of the start of the race are similar. 21 It is common ground that three riders came off their bikes during the race, the first being Ian Jones followed by David Pike and the plaintiff at about the same time. It is after this point that the witnesses' recollections differ. There is a critical factual dispute, the resolution of which will ultimately determine the outcome of these proceedings. If the plaintiff came to rest where the defendants' witnesses say, the plaintiff's case fails on liability. If the plaintiff came to rest where Mrs Armstrong, Messrs Lamb, Pettit and Flannigan say, the plaintiff will succeed on liability. I have found my task of fact finding difficult due to the fact that the accident occurred within seconds, it was very noisy and dirt and dust would have impaired clear vision. Furthermore, many of the witnesses were first asked to recall the accident many years after the accident occurred. Even if they made contemporaneous statements their tasks would have been difficult because they would have been required to recount a sequence of events that took place in a very short interval of time. 22 The following passage by Young J in Butler v Loneragan (1994) 19 MVR 361 at 366 is particularly apt. "… a tribunal of fact is in the final analysis usually not left in a situation where it has to ask whether A's version or B's version of an event should be preferred. Sometimes that happens, but often the situation is that the tribunal of fact accepts everybody as a witness of truth but can see from their different perspectives and from the surrounding circumstances where the truth really lies or the tribunal may in fact disbelieve every witness but still be able to come to a conclusion on the objective facts and surrounding circumstances, or that part of the evidence of one witness will be accepted as credible and another part of that witness's evidence discarded with similar choices being made from other parties' evidence. Finally, the Court may take the view that it has not been satisfied as to where the truth lies in which case the residual legal principle applies and there must be a verdict for the defendant. It is not to be suggested that a learned Magistrate when he highlights the fact that the two principal witnesses have differed from each other is thereby saying that he must only give his or her decision depending upon whether one or other witness satisfies the Magistrate that his particular version is correct." 23 There is a further difficulty in assessing the accuracy of evidence given by some of the defendants' witnesses. The defendants' lay witnesses namely Mr Dain Ramsay, Mr Scott Rawson, Mr Keith Ramsay, Mr Greg Cole, Mrs Jennifer Cole, Mrs Julie Hawkins, Mr Kevin Hollis, Mr Ian Jones, Mr Christopher Dixon, Mr David Tydd and Mrs Christine Dixon, attended a "surveying excursion" at which they identified the location where they said that the plaintiff came to rest. Although Mr Keith Ramsay attended the surveying excursion he did not give evidence at the hearing. On 6 July 2003 Mr Alan Lyle Edwards (a surveyor) and Mr Beams attended the site with a group of the witnesses who gave evidence at the trial. Each witness was asked individually to identify the location where the plaintiff came to rest. Mr Edwards then marked the position, transferred the location and made reference to the identity of the witness on his diagram on Ex 47#2 which I have reproduced and attached to this judgment. 24 It is difficult to say, with accuracy, whether each witness or any of the witnesses when asked on this surveying excursion to identify the plaintiff's location where he came to rest, were influenced by the process carried out and referred to above and if so, to what extent. When they attended the surveying excursion they were aware that the other witnesses were asked to do the same thing. If the witnesses were standing near the spectator area when other witnesses accompanied the surveyor, they would have been able to observe what the other witnesses did. I am not saying that any of them would have deliberately changed their evidence so as to conform with that of the others, but rather the effect of witnessing others standing in certain positions may have subtly influenced them, particularly as the survey took place six years after the accident at a time when their initial recollections of the events would have faded. The best way to allow for this contingency is to give lesser weight to the evidence of those witnesses who were present at the surveying excursion at the same time as others.

[10]

Mr Dain Ramsay 27 Mr Dain Ramsay gave evidence. He has been a member of the club for 14 years and started riding when he was 4 years old. Having previously raced on the track, he was an experienced rider and familiar with the track. Mr Dain Ramsay had previously seen a video and attended the surveying excursion (t 732). No evidence was adduced as to whether or not he completed a questionnaire. Mr Dain Ramsay made a statement to an investigator about 2 years ago but does not remember ever receiving a copy of it (t 740). He was a competitor in the race and was then aged 16 years (t 730-731). He does not remember where he was located on the start line. He recalled that he started the race and headed down the straight, battling for the lead. Thus he was ahead of the plaintiff and did not see the accident occur. After observing a red flag, he returned to the pit area and left his bike there. He then went to the canteen to buy a drink. From that area he could see a person lying on the ground with other persons assisting him. 28 Mr Dain Ramsay positioned the plaintiff as being at the end of the straight just back from the end of the crest of the hill on the left hand side, approximately 5 to 6 metres off the track and marked the plaintiff's position at rest on Ex 29. There were some trees to the left side of where the plaintiff was located. Mr Dain Ramsay estimated this position to be 30 to 35 metres from the left hand corner (t 732.4-34). He estimated that the distance between where he was standing near the canteen, to where the plaintiff's body was resting as 100 metres (t 732). 29 From the video Ex 13 at Frame 58, Mr Dain Ramsay (t 736) identified the position of the plaintiff as being at right angles from the head of the motorcycle, 5 to 6 metres left of the edge of the track. Mr Dain Ramsay identified the position of the plaintiff in video Ex 14 at Frame 23 at about 2½ inches above the helmet of the leading rider, in between two trees (t 737.35-55). The witness also indicated in Ex 14 at Frame 1.43 a point above a motorcyclist to the left of the centre of the screen; just back from the top of the crest. He identified a tree as being the one in the vicinity of where the plaintiff came to rest; possibly at the bottom of it (t 738.40 - 739.2). 30 When shown Ex 26, which had been marked to show two persons lying virtually side by side, Mr Dain Ramsay could not verify whether he saw anything like that in respect to the accident scene (t 739). Nowhere were there other riders lying prone. When it was put to Mr Dain Ramsay that if one looked through the forked gum with x-ray vision that that was where the plaintiff came to rest, he disagreed. When shown Ex JJ, upon which he had previously marked the position of the plaintiff, Mr Dain Ramsay said that he would not accept that that was anywhere near where the plaintiff was located (t 740.12-14).

[13]

Mr Ian Michael Jones 35 Mr Ian Michael Jones gave evidence. He has been racing since he was 14 or 15 years of age, is an experienced rider and is a member of the HVMC. I infer that he was familiar with the track. He was the first competitor in the race to come off his bike. Mr Jones made two statements on 11 May 1999 (Ex 38) and 12 November 2001, attended the surveying excursion and completed a questionnaire. 36 Mr Jones started the race to the left of the field. He was about mid-pack when he was hit from behind on the straight at a point where the Pee Wee divergence occurred (t 821.2-29). The pack of riders in front of him was proceeding in an orderly fashion. He was travelling at about 80 kilometres per hour. However, in his earlier statement he said that at the foot of the incline he was aware of two motorcycles on his left slightly behind him and as they started up the incline he had felt a bump toward the rear or side of his machine and he was thrown from his bike to the track. 37 Mr Jones tumbled, was shaken by his fall and then stood in the centre of the track (t 823.3). He saw people standing around the plaintiff who was on the ground. Mr Jones also saw Mr Pike, who was on his feet, further up the hill. Mr Pike was located at a distance of about 6 to 7 metres from the plaintiff (t 822.45). Mr Jones' placement of the position where the plaintiff came to rest varied in evidence from the earlier statement. Initially, he estimated that the plaintiff was about 4-5 metres off the track (t 823.16). But he also affirmed comments made by him in his statement of 11 May 1999 that following the accident the plaintiff was lying 3 metres off the track near a tree (t 833.28-54). Thus there is a variation of his evidence namely that the plaintiff came to rest either 3 or 4-5 metres off the track. In his earlier statement Mr Jones stated that while he could not identify the tree, the trees were all well clear of the side of the track [para 10]. 38 When shown the red rectangle on Ex JJ and asked if the plaintiff was located directly off the track, Mr Jones stated that the accident occurred further back. When shown photograph Ex EE and asked if the plaintiff was located to the left of the track at the end of the line of tyres he agreed (t 834). It was suggested that the plaintiff was located where the left hand line went straight through the forked gum tree. Mr Jones stated that the plaintiff was located further back and marked the spot with a round yellow sticker. In his earlier statement however, Mr Jones stated [para 10] that he was told that the plaintiff had hit a tree at the time of his fall but did not see him fall or strike the trees and that he was not in a position to identify which tree the plaintiff collided with. 39 Mr Jones agreed with the description of the accident contained in paragraph 21 of Ex 15 which states: "When the plaintiff had travelled approximately ¾ of the way along the start straight, he began to travel up a slight incline when his cycle collided with a cycle to his right (and slightly in front) driven by Mr Ian Jones, Mr Jones came off his cycle as a result of that collision and landed on the track. The accident occurred at least 30 metres from the left hand turn and the plaintiff's bike was mid track as being accurate." 40 When shown the video evidence Mr Jones did not find it to be of any assistance. When shown the video, Ex 14 at Frame 33, Mr Jones identified a tree in the middle of the frame and the Pee Wee track in the foreground from left to right.

[14]

Mr David Robert Pike 41 Mr David Robert Pike, the rider in the race who came off his bike at roughly the same time as the plaintiff, also gave evidence. He provided two statements namely in June 1998 and 14 December 2001 (MFI-15). Mr Pike did not attend the surveying excursion, but in cross-examination said that he did attend upon the track with 10 others in late 2003 (t 646- 648). He marked the position that the plaintiff came to rest in Ex 23. At the start of the race he was positioned at the far left of the field. He recalls having a bad start, going down the start straight and then trying to go up the left hand side of the track. 42 As the corner was approached it was important for him to be on the inside so he was making a beeline for the inside running on the left towards the corner. He was bumped from the right hand side of his bike and then that same motorcycle on the right came into contact with him a second time and went out of control. He refuted the suggestion that it was a bike on the left that collided with a bike on its left and then came into collision with him. At the time he was bumped, Mr Pike was located close to the Pee Wee divergence. Mr Pike and his bike travelled over the tyres off the track but the bike, which the plaintiff was riding, came back towards him again. He recalls flying through the air and waking up with people looking over him. Mr Pike thinks that he was unconscious for a short period of time and estimates that the plaintiff's body was 5 metres from the edge of the track. When Mr Pike regained consciousness he walked down the hill and was examined by an ambulance officer. 43 Mr Pike later gave evidence that he thought the plaintiff was located more than 3 metres from the track near the butt of a large tree. In 1998, Mr Pike said in a statement that the distance was 3 metres (t 648.55-60). He revised his opinion after he re-attended the racetrack and paced out the distance. Mr Pike made a later statement in 2001, which did not mention the distance the plaintiff's body was located at rest. As I cannot reconcile the evidence of Mr Pike in relation to the distance of the plaintiff from the edge of the track, all I can say is that Mr Pike says that the plaintiff was located between 3 to 5 metres from the edge of the track.

[15]

Mrs Armstrong (the plaintiff's mother) 44 Mrs Armstrong gave evidence concerning the sign on the property and the race entry form and I shall refer to this later in my judgment. Mrs Armstrong was standing in the spectator area at the start of the race, shown in a copy of Ex F by indicating her position with a blue circle (t 151-152) and a square with her initials in it on Ex N. She was sitting on a chair under an annex type set up. She had a clear view. To the left she could see the start gates and to the right she could see most of the track up to the top corner except where sapling trees obscured some of her view. She saw her son sitting on his bike ready to go. He was on the inside of the track with another rider coming up behind an additional rider. She saw him go past her and he was travelling very fast. She turned to watch his progress (t 154.25-34). Mrs Armstrong observed a bike cartwheeling through the air and a body flying through the air with a lot of dust. She knew it was that of her son. 45 She stood up and went to run but her other son Darren and husband indicated for her not to go. Her husband then started off and she ran diagonally across the track towards her son. As she was running, she noticed tyres scattered across the track. She saw her son lying on his back on the ground. His head was facing back towards the starting gate and his feet were facing towards the top corner. There was a big rock located near his head. There was a large quite solid tree in the left hand vicinity of the plaintiff's body within a few feet of where his feet were located. Mrs Armstrong said that the tree was located about 6 feet off the track (t 153-155). Mrs Armstrong denied that the plaintiff came off the track some 10 to 15 metres further back from where he was found. Mrs Armstrong maintained that she saw her son fly through the air, coming to rest 6 feet from the edge of the track (t 461) and specifically rejected the suggestion that her son was more than 6 feet from the tree. She disagreed with Mr Miles's evidence as to the location of the plaintiff's body. She said that when she reached the plaintiff, he had his helmet on, his breathing was shallow and he was unconscious. She agreed that Mr Lamb cared for him until the ambulance arrived. 46 Having been shown video Ex 14 stopped at 26 seconds, Mrs Armstrong was asked to point to the place where she saw her son on the ground. Mrs Armstrong pointed to the vicinity behind a large forked gum tree, 6 feet from the edge of the racetrack (t 455). She was then shown a drawing (Exhibit N) and agreed with counsel that her son lay somewhere in the vicinity of the "X" marked with a T (XT) (t 456). When asked if she estimated the position of her son to be behind the left hand fork of the tree, just where it forked off from the base, Mrs Armstrong agreed with counsel.

[17]

The spectators Mr Peter Lamb 48 Mr Peter Lamb gave evidence and is a critical witness so I have carefully scrutinised his evidence. He did not make a prior written statement nor did he attend the surveying excursion. He attended the race day with a friend and had intended to compete in a later race. He had never been to Molly Milligan's before and was thus unfamiliar with its layout (t 131.30). He had been riding motorcycles for 12 years. Mr Lamb walked the track with a number of other competitors prior to the commencement of the race day. He was a spectator of the race in which the plaintiff competed and he was an eyewitness to the accident. He had positioned himself along the main straight near the spot marked canteen in Ex F. He wanted to see how the riders in the first race funnelled into the first left hand corner of the track. He positioned himself so that he had a full, clear and unobstructed view of the straight at the first left hand corner of the track. Mr Lamb identified where he was standing beyond a large tree shown in photograph marked as Ex L. He was standing about 30 to 50 metres from the trees (t 133.46). 49 Mr Lamb saw the race commence and the riders go down a small incline and then up a small incline to approach a corner. By this time there was a group of about 6 riders who were slightly in front (t 126.26-29). When this group approached the left hand corner, the outside rider merged in to take the corner. Mr Lamb saw the outside rider hit the right side of the plaintiff's bike which pushed the plaintiff onto the right hand side of the bike that was on the inside of him. Before they got round the corner the plaintiff's bike had been forced off the track. He saw the bike cartwheel in the vicinity of the tyres on the side of the track. The plaintiff went over the handlebars headfirst. Mr Lamb recounted that he saw the plaintiff hit the trees and that was when he proceeded to jump the fence and run up to give aid. The next question was "You physically saw him hit the tree yourself?" Mr Lamb answered "Yes" (t 127.3-7). At t 127.25 Mr Johnson again asked Mr Lamb "You saw him hit the tree?" Mr Lamb answered "Correct". The plaintiff hit the tree headfirst (t 129.49). 50 Initially, Mr Lamb indicated he was standing in the vicinity of the spot he marked "X" on Ex N, but changed it to "X2" which places him in roughly the same position but behind the barrier. He acknowledged that he could not see the corner at the point where he marked (3) but on his version of events, the accident occurred before point (3). He indicated that the accident occurred in the vicinity of the spot marked "XT" on Ex N. It was 150 metres from the start line (t 138.27) and 15 metres from the apex of the corner (t 434.54). At the time the plaintiff came off his bike Mr Lamb's attention was focused on the straight of the left hand corner of the track, so he was watching that particular spot. 51 Mr Lamb was one of the first persons to reach the plaintiff. He rendered first aid. When Mr Lamb got to the plaintiff he was lying backwards with his head pointing towards the start line and his legs towards the tree. Mr Lamb gave evidence that the tree he saw the plaintiff hit was 2 to 3 metres off the track and that there was a group of trees in that vicinity (t 128. 55). In cross-examination Mr Lamb gave evidence that although he saw the plaintiff hit a tree, he could not identify the particular tree with which the plaintiff came into contact (t 142. 1-2). Despite his earlier reference to trees I accept Mr Lamb saw the plaintiff hit a tree. He was most definite about that. He saw the plaintiff virtually flip and go backwards. The height that the plaintiff came off his bike suggested to him that the plaintiff hit that tree at a height of between a metre to a metre and a half (t 299.35). The plaintiff's legs were in the proximity of the tree that he hit (t 129.44). The estimate of 1 to 1.5 metres was based on his observation from 30 to 50 metres away. Mr Lamb agreed that it all happened in a short space of time, but enough time for him to recall what happened. 52 Mr Lamb proceeded to immobilise the plaintiff's head. He noticed that the helmet had scuffmarks on it. He cleared the plaintiff's mouth where he had fractured and busted teeth and waited until the ambulance arrived (t 127.42-48). Mr Lamb held the plaintiff so that his neck remained still (t 142.52). He placed the plaintiff's legs between his legs and waited for assistance. He remained with the plaintiff in that position until the ambulance arrived (t 143.7). It is not known if Mr Lamb was first asked to recollect the accident at any time before he gave evidence at court. 53 On the final occasion Mr Lamb was recalled to give evidence and shown the videos (Exs 13 and 14), he identified the location of the trees in Ex 14 at Frame 26 as being obscured because of the presence in the frame of a large gum tree split in half. The gum is shown in photographs Exs L, EE and HH. In Ex 13 at Frame 56, he identified a clump of trees to the left as the incline goes up as being the ones in which the offending tree was located (t 437).

[18]

Mrs Julie Rita Hawkins 54 Mrs Julie Rita Hawkins, an assistant in nursing, gave evidence. She was first asked to recall the events of this accident earlier in 2003. She had filled out the questionnaire and had seen the two videos prior to attending the track with the surveyor. She was at the racetrack as a spectator as her three children were competing, although none of them were in the first race. She had attended the track once a month for a number of years. She saw the start of the race. She was standing in the spectator area near the canteen when she observed the riders go along the track and up the hill and some bikes go "out of control" (t 668.15-24). 55 Mrs Hawkins identified the position that the plaintiff came to rest as being to the left in Frame 58 of Ex 13 and also on Ex 24. She stated that the plaintiff was located in amongst the line of scrubby trees of about 1 foot to 18 inches in diameter off to the left of the edge of the track marked by tyres. The plaintiff's shoulder was near the tree. When she saw the plaintiff, his body was pointing away from the track with his head closest to the track. The closest portion of the plaintiff's body was approximately 15 feet to the left hand side of the track (t 669.25). The plaintiff was 3 feet away from the closest tree (t 669.39). These trees did not have any protective barrier of tyres attached to them (t 681.18-34). Mrs Hawkins crossed the track and ran one third of the way up the hill to where the plaintiff lay to render assistance (t 669.4-8). The plaintiff was unconscious. When she got there, Keith Ramsay was there. She waited for the ambulance to arrive and comforted Mrs Armstrong. 56 When Mrs Hawkins was shown Frame 25 of video Ex 14, showing a forked gum tree on the right, she denied that she saw the plaintiff lying, as was suggested to her, in a position found by drawing an imaginary line through the fork of a tree which obscured the view from the left hand side of the track across to the other side (t 678. 40-57).

[21]

Mr William Raymond Armitage 61 Mr William Raymond Armitage, an earthmoving contractor gave evidence. He is the current president of the club, and has been a member for approximately 12 years. Mr Armitage made a statement dated 13 November 2001 (Ex 18). He did not attend the surveying excursion. On the day of the accident he was the official starter (t 535.1-22). He was at the start line with an assistant starter. The bikes were assembled for the start once Mr Keith Ramsay (the marshal and clerk of the course) gave the all clear. Mr Keith Ramsay was part way along the straight on the inside or left hand side of the track and on the other side of the track to Mr Armitage (t 536.40-47; 537.6-13). Mr Armitage was the person that caused the gates to drop. 62 Mr Armitage watched the bikes as they started along the straight (t 538.1-6). He noticed as the bikes got towards where the Pee Wee track deviates (Mr Armitage indicated the Pee Wee deviation by marking "DV" on Ex N) he saw a bike which appeared to be going to the left then the right in amongst the pack (t 539.27-34). He then saw bikes out of control as they went up the hill. He saw bikes tumbling and a bike shoot off to the left of the track in amongst the trees about 25 metres further on from the point marked "DV" on Ex N (t 539.27-40). Mr Armitage continued to watch to see whether the clerk of the course red flagged the race. 63 Mr Armitage then went up near the accident scene to have a look and see if he could determine what if anything had contributed to the accident (t 540.6-10). He looked at the surface of the track, the tyres and had a general look of the area. He saw a couple of bikes there and the plaintiff receiving medical attention on the ground. He looked at the tyres on the edge of the track and none of them were loose (t 540.16-20). 64 Mr Armitage did not go near the plaintiff but stood about 6 or 7 metres away. He said that the plaintiff himself was laying around 6 metres from the edge of the tyres (t 540.40-44) amongst the trees and that there were one or two trees between the plaintiff and the track. Those trees were 5 metres distance from the track. Mr Armitage also estimated that the plaintiff was positioned 30 metres from a large tree on the corner of the first bend (t 541), one metre behind or further on from another group of trees visible in Ex 13, Frames 57-1.17 (t 541-542). In Ex 14 Mr Armitage estimated that the plaintiff came to rest near a white marker approximately 90 degrees from a second rider visible in Frame 24 (t 544-545). Mr Armitage was also directed to the forked gum shown in Ex 14 and asked to take a direct line of sight between the left hand component of the fork to the other side of the cycle track opposite where the tree is situated, and when asked if that was where the plaintiff came to rest (t 562.35-563.42), he disagreed. Mr Armitage did not remain at the scene of the accident. He returned to the start of the track to terminate the race (t 545.20-25).

[22]

Mr Scott Rawson 65 Mr Scott Rawson has been riding motor-cross bikes since the age of 12 years (he is now 24), and was extremely familiar with the track having ridden it many times. He attended the surveying excursion, completed the questionnaire but had not seen the videos prior to giving evidence. He was first asked to recall this event in mid 2002. Mr Rawson has not made a written statement. He was standing roughly half way down the straight on the fence line of the spectator area next to the entrance where the cars go in (t 807.47). Mr Rawson gave evidence that he saw an incident occur shortly after the race started at the end of the straight. Mr Rawson saw 2 or 3 bikes "get into trouble" and "arms and legs going every way and dirt being thrown up" (t 807.52-59). He observed a red CR 250 (1994 model) because the rider did not get up. The rider went out of control and the whole of the bike was slapping from side to side and 'roost' (dirt and rocks) was being thrown up. 66 Mr Rawson identified the place where the plaintiff was found in Ex 36 and described it as being on the left hand side of the track at the end of the straight, half way up the incline, 25 metres back from the left hand corner and 3 to 4 metres to the left of the tyre line (t 809.40-54). In cross-examination, Mr Rawson indicated on Ex 36, (copy of Ex F) that he believed the plaintiff came to rest at the commencement of the incline at the end of the straight (t 810.50-811.6). 67 Mr Rawson stated that Video Ex 13 did not assist him because he had ridden on the track many times and knew it (t 812.7-14). Video Ex 14 looked more like the track on the day and he identified Frame 23 to the left of the first rider, at right angles to him at a distance of 1-2 metres, as to where the plaintiff was found (t 813.16-36). When Ex 14 was again stopped at a different aspect within Frame 23, Mr Rawson was directed towards the sun-lit trees on the left, but he could not remember the position in which the plaintiff was lying (t 814.23-28). Mr Rawson was standing in a position that he thinks the person who took Ex 14 must have been standing as he had the same view as shown on that frame. At Frame 24, Mr Rawson was directed to the forked gum, and asked to take a line straight through the left hand component of the tree and arrive at that point on the other side of the track. He denied that this was the position where the plaintiff came to rest and stated that that position was roughly 20 metres from where he positioned the plaintiff (t 815.32-34). Mr Rawson denied that the plaintiff was found at the end of the line of trees at Frame 25. He described that location as being a braking area (t 816.18-50). Mr Rawson also denied that the red oblong marked in Ex JJ marked the actual position that the plaintiff came to rest (t 817.55-818.7).

[23]

Mr Geoffrey Joseph Miles - one of the second defendants 68 Mr Geoffrey Joseph Miles, one of the named second defendants gave evidence. He made a statement in November 2001 (MFI 11). I was unimpressed by the manner in which Mr Miles gave evidence. There are inconsistencies in his evidence. He did not attend the surveying excursion. He did not witness the accident and I place little weight on his version of events. Mr Miles was at his house when the accident occurred (t 343.44-47). After being informed of the accident by his wife, Mr Miles proceeded to where the plaintiff was lying (t 345.49-344.13). Mr Miles said that it was about 800 metres from his house to the racetrack. He estimated that the distance from the starting point to where the plaintiff was located was approximately 150 metres and that the distance from the spectator area to the point closest to where the plaintiff was located was 80 metres. He also estimated that from the ambulance gate to where the plaintiff was located was some 90-100 metres (t 346.30-347.27). 69 Mr Miles identified where the plaintiff was found as being 2 metres behind the tree marked with a yellow sticker and identified as Frame 24 in Ex 12 (being a still taken from video Ex 14) (t 466-468). That particular tree was located 6-7 metres away from the edge of the track (t 465.40-45). He stated that when he went to the accident scene a mark on the tree was pointed out to him (t 347). The mark was about 7½ to 8 metres high, being higher than he could reach. He later explained that he was thinking in feet and stated it was 3 metres plus (t 348). It was a fresh mark across the bark. When asked about this inconsistent evidence Mr Miles said that he remembered the mark on the tree but did not remember making that statement to the investigator. It was the view of Mr William Keramidas, an engineer, that it was unlikely the plaintiff would have hit the tree at this height. 70 Mr Miles also gave evidence that the plaintiff's feet were located 1½ to 2 metres away from the tree (t 348.26). The "Miles" statement did not mention where the plaintiff was located, it does not refer to the tree nor that the plaintiff's feet were located 1½ to 2 metres away from that tree. By way of explanation, Mr Miles said that he was not asked these questions by the investigator. 71 Mr Miles was asked about his understanding of how far the trees had to be from the edge of the track. He gave evidence that none of the trees in the region where the plaintiff was found were 4 to 5 metres from the edge of the track (t 471.1) but admitted that some trees converged to a point much closer than 4 to 5 metres from the edge of the track. He adhered to the answer that he knew that the track had been built in accordance with Motorcycle Australia guidelines, but he did not know what the guidelines were. He has not read the Motor-cross by-laws. 72 Mrs Miles, the other second defendant, did not give evidence.

[25]

Mr Bruce David Moffatt 75 Mr Bruce David Moffatt was an ambulance officer and helped out with official duties at the track. His son raced. He was a travelling Marshall. He made a statement dated 31 March 2003. He did not attend the surveying excursion. He gave evidence that he had not seen any videos of the meeting at Molly Milligan's (t 874.1-9), but then said that it had been a while since he had seen that video, namely Ex 13 (t 874.18-22). Mr Moffatt was the designated first aid officer who was meant to be at the track before the race started but was late due to a flat tyre. There were however, other qualified first aid officers on site when the race started. Mr Marshall arrived at the track about 5 to 10 minutes after the accident happened. He drove onto the track and turned right. He parked half way up the straight on the left hand side (t 868-869). As he approached the plaintiff he observed that the plaintiff was in the recovery position on his side. He looked for any danger signs. 76 According to Mr Moffatt the closest tree to the plaintiff was approximately ten feet up and above the plaintiff (t 870.11-14). His feet were facing down the hill, head up hill and lying parallel to the road and not at right angles (t 879 46-48; 880 14-15). Julie Hawkins was present as was another nurse whose name he is unaware (t 870.20-40). Mr Moffatt took the plaintiff's helmet off but did not notice any damage other than scratches on the helmet (t 871.5-20). Mr Moffatt stated that he had a clear recollection of this. He carried out an airway, breathing and circulation check and an orthopaedic check. He treated the plaintiff as an unconscious head injury patient. He did not conduct a Glasgow coma score. Mr Moffatt stayed and treated the plaintiff until the ambulance officer and helicopter arrived. 77 On Ex 44 #2 Mr Moffatt indicated where he had parked his car, and the position of the plaintiff. The plaintiff was lying 10 to 15 feet from the left hand side of the track and 30 to 40 metres from the left hand turn (t 872.47-58). Mr Moffatt later said that the plaintiff was no more than 10 feet from the edge of the tyres (t 876.25-27). Mr Moffatt remembers getting the stretcher and gear out of the ambulance but cannot remember precisely where the ambulance was located. In cross-examination he stated that the ambulance was parked on an incline. He thinks that there were two people and one ambulance. The plaintiff was taken by stretcher to the ambulance. The helicopter landed behind the spectator area in a corn paddock. 78 When shown Video Ex 14, Mr Moffatt identified the place where he parked his car as Frame 24, parked on the track against the tyres in line with the top rider (t 875.1-21). The front of his vehicle would have been in line with the "thistle" (t 875. 51-58). The plaintiff was to the left of the thistle, lying in there (t 876). When shown Ex JJ Mr Moffatt denied that the plaintiff was lying where the red oblong appears (t 880.32-38). 79 Mr Moffatt gave his evidence in a glib manner. He was keen to articulate his belief that the plaintiff did not hit a tree because there was no visible damage on his helmet. He does not believe that the plaintiff had hit a tree and catapulted back. He stated that the plaintiff's injuries were consistent with him hitting his head on the ground (t 880.50-881.25). 80 Mr Moffatt admitted that his statement as to where the plaintiff was at rest was inconsistent with his statement made 31 March 2003 (t 885.51-58). He admitted that he was a lot fresher when he made the statement in March 2003 than when he gave his evidence. Mr Moffatt was asked about his recollection that the plaintiff's helmet was already off, yet in evidence he said that he had taken it off (t 886.44-49). He could not explain this inconsistency although he did indicate that he was pre-occupied with the plaintiff's back, neck and everything else. In his statement, Mr Moffatt had also failed to indicate the position along the straight where he parked his car opposite to where the plaintiff was lying. He said that he did not think that that was important or relevant (t 887.1-27).

[26]

The officials Mr Peter Fletcher 81 Mr Peter Fletcher, the lap scorer on the day of the accident, was present in the control tower (shown in photograph Ex 19) when the accident occurred. Mr Fletcher was asked to make a statement for the first time only a few weeks before he gave evidence (t 614.39). He did not read it before attending court. Although he had been asked to attend the surveying excursion he did not do so (t 614.13-22). 82 Mr Fletcher saw the riders prior to the race complete one practice lap before forming on the start line. He observed the start of the race. He saw all the riders line up and the gate drop. One of the bikes got caught in the gate (t 604.43-55). Mr Fletcher saw the bikes go up the straight and one bike, which he thought was the plaintiff's go the "head shake" and "got the wobbles up a bit" (t 605.1-5). Mr Fletcher explained the "head shake" as being when the bikes get going a bit too fast on the straight they bounce and start to wobble left to right (t 605.2-11). Mr Fletcher saw the plaintiff's bike bump Ian Jones's bike (to the left of the plaintiff) on the flat just before the Pee Wee track (the Pee Wee track shown in Ex 20). After this bump, the plaintiff remained vertical but was still wobbly. The plaintiff moved to the right and then bumped another bike almost simultaneously. Mr Fletcher was not able to identify the other rider. After that, dust obscured Mr Fletcher's vision. A red flag was shown and the race was stopped. 83 As people were asked to stay away from the accident scene, Mr Fletcher stood about 30 metres from where the plaintiff was laying. He positioned the plaintiff as being 4-5 metres to the left of the track (t 606.9, t 612.10) at a point where the track veers slightly to the right (before the sharp left hand turn) (t 606.18). This is about 30 metres back from the sharp left hand turn (t 613.18-25). Mr Fletcher marked the point as to where the plaintiff was lying on Ex 20, but stated that it was only approximate as the diagram was not accurate. According to Mr Fletcher a more accurate diagram is contained in Ex 21. He marked the position of the plaintiff on Ex 21. Curiously, Mr Fletcher recalled helping to fix a flat tyre on an ambulance although no one else mentioned this fact. He stated that the ambulance came to a stop on the incline.

[27]

Mrs Christine Margaret Dixon 84 Mrs Christine Margaret Dixon, a director of a motorcycle retail shop, gave evidence. Mrs Dixon watched the video prior to giving evidence but had a recollection of events prior to viewing it, although she had not been asked to reflect on those events prior to attending the surveying excursion (t 718.8-22). She went on the surveying excursion (t 708.36, t 710.50-58). On arrival she received a questionnaire, completed it and handed it back (t 711.46). She has not previously made a written statement. 85 On the day of the accident Mrs Dixon was working in the canteen and remained there throughout the day. The canteen was located about 200 metres away from where the plaintiff came to rest. It faces the track with no visual impedient to her line of vision (t 720.43-45). Mrs Dixon did not see the accident occur did observe where the plaintiff came to rest. She estimated that the distance between the canteen and the location of the plaintiff was 200 metres (t 720.16-17). She stated that she could see the person laying 1 to 2 metres from a tree back towards the start line and that he was about 6 metres from the edge of the track (t 708.5-25). 86 Mrs Dixon did not go over to the accident scene but saw the ambulance go up the track about 6 metres, in line with that person (t 710.6- 8). She placed the plaintiff and the ambulance on Ex 27. Mrs Dixon stated it was 27 metres from where the person was positioned to the left hand corner (t 710.31-45). However, when giving this evidence she made reference to the surveyor (t 710.24-45). 87 When shown Ex 13 at Frame 58, Mrs Dixon identified the position where the plaintiff was found at rest. She said that the plaintiff was located near a tree, at right angle to the left of the rider shown in the middle of the track. Mrs Dixon was also shown Ex 14 at Frame 27. She identified that the plaintiff was located at the end of the row of tyres on the left hand side of the track, a little to the left. She pointed out a tree. She did not know whether he was laying head or feet first, nor at what angle he was lying (t 716.32-40). She does not remember another rider lying on the ground nearby. Mr Christopher Dixon 88 Mr Christopher Dixon, is married to Mrs Dixon and is a co-director of a motorcycle retail sales business. He attended the surveying excursion and took a questionnaire and completed it that day after conducting the inspection. Mr Dixon had not previously made a statement, the questionnaire and surveying excursion was the first time he was asked to recall the events (t 725.58; 726.13; 727.34-37). He had not seen the videos (Ex 13 & 14). He is an experienced motor-cross rider. 89 Mr Dixon was standing in the spectator area slightly in front and to the right of the canteen (t 722. 52-53). He saw the race start. At the start of the rise of the hill at the end of the straight, Mr Dixon saw the plaintiff's bike "get a little out of control" (t 723.6). He did not go over to where the plaintiff came to rest. He saw two maybe three other riders come off their bikes. He can remember two riders being located on the track. One was injured and the other one or two were not and got up pretty well straight away. Mr Dixon did not go right up to the scene of the accident (728.22-25), but he estimates that the plaintiff came to rest about 5 metres from the edge of the track about 25 metres back from the left hand turn (t 724.45-54) and about 25 metres past the Pee Wee diversion (t 728.14-16).

[28]

Mr Greg Reginald Cole 90 Mr Greg Reginald Cole gave evidence. He was the treasurer of the club. Mr Cole had raced bikes on the track between 1993 and 1995, and was an official between 1996 and 1998. Mr Cole attended the surveying excursion, prepared and completed the questionnaire and had viewed both videos prior to attending court. He made a statement dated 10 May 1999 (Ex 33). He was the Marshall at the finish line who was standing in a position near the start line when the race took place (shown on Ex 31). Mr Cole did not see the accident occur. The race steward told him to stop the race so he held out a red flag. 91 Mr Cole then stood in front of the ambulance entrance to ensure that no one who was not involved in assisting the plaintiff went onto the track and remained there until the plaintiff was transported in the ambulance. Mr Cole was standing 70 metres away from where the plaintiff was located (t 792.1). He saw the plaintiff laying on the track and has marked where the plaintiff was at rest and the position of the ambulance on the slight flat on Ex 31. Mr Cole stated that the plaintiff was 5 metres from the left hand side of the track and 30 metres from the crest of the hill (t 792.5-24). 92 When shown Ex 13 of Frame 59 Mr Cole pointed out the position where the plaintiff came to rest as being 2 to 3 metres back and off to the left between two trees. Mr Cole identified that the plaintiff came to rest in Ex 14 Frame 24, in the middle of the frame, where there is a small tree (identified as a thistle) and just to the left. 93 Mr Cole denied that the plaintiff came to rest at a place, if one looked through the fork of the large tree on the right, in Ex 14 at Frame 24 (t 788.10-12). When shown Ex JJ, Mr Cole denied that the plaintiff came to rest to the left of the red rectangle (t 788.21-24) or closer than 5 metres off the track (t 792.17-20). Later Mr Cole, in cross examination, became visibly rattled and admitted he did not actually see the plaintiff at rest, but merely saw people standing around what he assumed to be the plaintiff (t 793.39-794.34). Further, in a statement dated 10 May 1999 Ex 33, he stated that he did not witness the accident and that he did not know how far off the track the plaintiff came to rest (t 794.36-795.19). In light of this admission, I disregard his evidence as being unreliable and unsafe on the topic of where the plaintiff came to rest.

[30]

Summary of accident 96 From the evidence to which I have previously referred, I summarise and make the following findings concerning the accident. After the start of the race, the motorcycles were travelling at about 80km/h on the straight. A collision or collisions occurred along the straight at about the Pee Wee diversion (Jones, Pike). Versions as to what actually caused the riders to come off their bikes differ. Mr Jones says that when he was travelling up the incline, he was aware of the motorcycles behind him and he was hit from behind. He felt a bump toward the rear or side of his machine. Mr Pike said he was making a beeline for the inside running towards the left hand corner when he was bumped from the right hand side and then that same motorcycle came into contact with him a second time and he went out of control. 97 Mr Lamb stated that he saw the outside rider hit the right side of the plaintiff's bike which pushed the plaintiff into the right hand side of the bike that was on the inside of the plaintiff whereas Mr Tydd saw one bike move from side to side and make contact with the bikes on each side. Similarly, Mr Armitage saw a bike which appeared to be going to the left and then the right in the pack. Mr Rawson was less equivocal in that he saw 2 or 3 bikes "get into trouble" Mr Hollis saw Jones fall off his bike and another unidentified rider come off his bike and explained that Mr Jones may have been hooked up with another different unidentified rider. Mr Fletcher saw that the plaintiff's bike "got the head shake" and bump Mr Jones's bike, to the left of the plaintiff. After this bump the plaintiff's bike remained vertical but was still wobbly. The plaintiff then moved to the right and bumped another unidentified rider. On the Pike and Tydd version, the bumping between Jones, Pike and the plaintiff took place almost simultaneously. According to Mr Flannigan who was on his bike travelling behind Jones, Pike and the plaintiff, Jones came off his bike first and his dismount was almost complete when the plaintiff and Pike came off their bikes. 98 It is difficult to say what actually occurred. It would appear that initially the plaintiff's bike hit Jones's bike. Pike does not refer to bumping Jones and the plaintiff cannot remember what occurred. The Jones version means that he (Jones) was hit first and this version is consistent with Jones completing his dismount earlier than Pike and the plaintiff. It also accords with the eyewitness accounts of Hollis and Flannigan. I accept that Jones came off his bike first after being hit by the plaintiff's bike. I find that almost immediately after Jones's bike was hit, the plaintiff's and Pike's bikes came into collision at least once, maybe twice and as a result of one or both of these collisions, the plaintiff lost control of his bike. I consider that the collision or collisions were ordinary incidents of motor-cross racing and thus do not give rise to negligence. 99 The plaintiff's bike cartwheeled and he went over the handlebars of his bike. Only Lamb saw the plaintiff actually hit a tree headfirst at a height of about 1 to 1.5 metres from the ground. The plaintiff's body came to rest near the butt of a large tree (Pike, Flannigan, Mrs Armstrong). To make the critical findings of where the plaintiff came to rest and the location of the tree requires that the evidence referred to earlier in this judgment be analysed further.

[31]

The location of the plaintiff 100 Mr Lamb placed the plaintiff as being 150 metres from the start line and 15 metres from the apex of the left hand corner when he came to rest. Mr Lamb and Mrs Armstrong indicated that the accident occurred at the spot "XT" on Ex N. Mr Lamb identified the location of the trees in Ex 14 at Frame 26 as being obscured because of the presence in the frame of a large gun tree split in half. The gum is shown in photographs Exs L, EE and HH. In Ex 13 at Frame 56, Mr Lamb identified a clump of trees to the left as the incline goes up as being the ones in which the offending tree was located (t 437). Mr Pike placed the plaintiff as being 3 metres off the track. Mrs Armstrong also placed her son as being behind the large forked gum tree (Ex 14 Frame 26) just where it forked off from the base of the tree. She positioned her son near a large tree with his feet being located a few feet from that tree. According to Mrs Armstrong the plaintiff was located 6 feet off the inside of the track. Mr Lamb's evidence was that the tree that the plaintiff hit was 2 to 3 metres off the track (t 128.55). Mr Pettit positioned the plaintiff as further towards the crest of the hill, in a similar position to where Mr Lamb and Mrs Armstrong placed him near the left hand corner with his feet being 10 feet from the edge of the track (see EE). Similarly, Mr Flannigan placed the plaintiff as coming to rest 40 to 50 feet (12.2-15.2 metres) from the apex of the left hand turn but with his legs being 15 feet from the left hand edge off the track. Mr Flannigan stated that the tree was 3 metres from the edge of the left hand side of the track and the plaintiff was located 3 to 4 feet from the butt of the tree. 101 Mr Armitage the current president of the Club, placed the plaintiff as being 6 metres from the edge of the track and 30 metres from a large tree in the corner of the first bend. Mr Fletcher, who was at the control tower, placed the plaintiff 30 metres from the left hand turn and 4 to 5 metres left of the track. Mr Hayller a competitor did not go to where the plaintiff was laying but he gave a rough estimate that a group of people were standing 20-30 metres from the left hand corner. He did not mention the tree. Mr Moffitt, a travelling Marshall for the Club, placed the plaintiff 30 to 40 metres back from the left hand turn and 10 to 15 feet from the left hand side of the track. Mr Miles one of the defendants, did not give a distance from the left hand corner, but stated that the plaintiff was located 150 metres from the start line (same as Mr Lamb). Mr Miles stated that the plaintiff's feet were located 1½-2 metres away from a tree but those trees were 4-5 metres from the edge of the track. Mr Hayller, an independent witness who was not a member of the Club and did not attend the surveying excursion placed the plaintiff as coming to rest 30 to 40 metres back from the left hand turn and 10-15 feet from the left hand side of the track. 102 The witnesses who attended the surveying excursion were Mr Dain Ramsay, Mr Scott Rawson, Mr Greg Cole, Mrs Jennifer Cole, Mrs Julie Hawkins, Mr Kevin Hollis, Mr Ian Jones, Mr Christopher Dixon, Mr David Tydd and Mrs Christine Dixon. Mr Dain Ramsay did not actually go to the place where the plaintiff was laying but positioned the plaintiff 30-35 metres from the left hand corner, just back from the end of the crest of a hill, 5-6 metres off the track. Mr Rawson places the plaintiff as being 25 metres from the left hand corner and 3-4 metres to the left of the edge of the track. As previously stated, I have not accepted Mr Greg Coles evidence on these topics. Mrs Coles was less specific and indicated that they (a group of people) were located 4-5 metres off the track and 15 metres from the Pee Wee Track uphill, 30 metres back from the left hand bend. 103 Mrs Hawkins placed the plaintiff as being located 15 feet to the left hand side of the track and 3 feet away from the closest trees. She identified the place that the plaintiff came to rest at Frame 58 of Ex 13 and also on Ex 24. Mr Hollis positioned the plaintiff 30 metres before the "tight" corner, about 2 metres off the track. Mr Jones placed the plaintiff at between 3 to 5 metres off the track and 30 metres back from the left hand turn near a tree. Mr Dixon estimated that the plaintiff came to rest 25 metres back from the left hand turn (being 25 metres past the Pee Wee diversion) and about 5 metres from the edge of the track. Mr Tydd positioned the plaintiff at rest at 25 metres from the bend and 5-6 metres from the edge of the track but made no mention of a tree. Mrs Dixon saw the plaintiff lying 6 metres from the edge of the track but 1 to 2 metres from a tree and the plaintiff was 27 metres back from the left hand corner. 104 The witnesses marked separate copies of an unmarked copy of Ex F to show the position of the plaintiff at rest. When they are examined, they show a different scenario and it does not necessarily accord with the position those witnesses who attended the surveying excursion plotted on Ex 47#2. As Ex F is not drawn to scale, I accept that it is difficult to plot a point on it with accuracy and for this reason I give a lesser weight to this method of establishing where the plaintiff came to rest. If one looks at diagram Ex F there is also a broken line that commences at the start line and follows the straight but it curves away before reaching the left hand corner. This broken line indicates the Pee Wee track. Those who have placed the plaintiff as coming to rest on the left hand side of the Pee Wee track (ie closer to the start line) are Peter Fletcher (Ex 20), Julie Hawkins (Ex 24), David Tydd (Ex 26), Jenny Cole (Ex 39) and Bruce Moffatt (Ex 44#2. David Pike (Ex 23) placed the plaintiff as coming to rest on the broken line. These versions are incorrect as the collision occurred at a point very close to the Pee Wee diversion and the riders came off their bikes further along the track. Those who have placed the plaintiff on the other side of the broken curved line (closer to the apex of the left hand corner) are Glenn Hayller (Ex 43), Scott Rawson (Ex 36), Ian Jones (Ex 37), Greg Cole (Ex 31), Dain Ramsay (Ex 29), Chris Dixon (Ex 28), Christine Dixon (Ex 27), Kevin Hollis (Ex 25), Peter Lamb (Ex N) and Terrence Flannigan (Ex 22). I have also taken into account the videos and the evidence of the witnesses referred to earlier in this judgment.

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Mr Fred Schnerring 105 There is expert opinion to support the evidence of Mr Lamb and Mrs Armstrong. Mr Fred Schnerring, a qualified engineer who had previously been involved in accident investigations and setting standards for road audits, provided two reports dated 24 March 1999 and 22 May 2002 (Ex AA). In his reports, Mr Schnerring commented that he had not inspected the site but had seen photographs of the track, presumably those which were noted by him in his report as showing a race in progress on 4 November 1996. The photographs showed a large number of trees close to the edge of the track. Some trees were located within about a metre of the edge of the track near a curve. In one photograph, a tree and tree stump are at the edge of the track at a point where the track kinked left after a jump on a short straight. He considered that a rider approaching off-line, or out of control (not an unusual likelihood in a race) could be considered to have a high probability of striking the tree. Sergeant Carrero 106 Sergeant Carrero gave evidence. He wrote a report on the Molly Milligan motorcycle track addressed to the NSW Department of Sport and Recreation dated 29 July 1997 (16 days after the accident) after carrying out a safety inspection of the track. Sergeant Carrero described the corner where the accident occurred as a hairpin bend in the southeast corner and recommended: "After carrying out the inspection it is my opinion that a safety hazard is present around the perimeter of the track and its interior north-east section. Dense vegetation is present and in close proximity to the track, certainly well within the safety guide of 20 metres. This vegetation and that of the inner section of the north-east loop, contains trees of a substantial size trunk. No barriers protect the riders from these trees in case of a collision. It is therefore my recommendation that either the vegetation be removed or safety barriers such as tyres be provided for the protection of riders. If the vegetation was to be cleared it would involve clearing an area of at least 30 metres around the perimeter of the track and total clearance of the inner section." 107 The reference in the first paragraph to a "north-east section" is a reference to the south-east section. These recommendations were directed towards the density, size and proximity of the trees at the southeast hairpin bend, which is where the accident had occurred. Sergeant Carrero gave evidence that some of the trees were within 2 metres of the perimeter.

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The defendants' experts (Messrs Keramidas and Hall) 109 The defendants provided reports from two experts, namely Mr William Keramidas and Mr Christopher Hall (Ex 15). Both were cross-examined. Both of these witnesses had experience with motor-cross racing. Aside from motor racing accidents, Mr Keramidas, had previously analysed motor-cross accidents as part of his consultancy work. Mr Hall, had raced as a motor-cross competitor and had inspected and consulted on tracks across the world. Mr Keramidas provided two reports namely those of 14 March 2001 and 31 July 2002 (Ex 15). I found Mr Keramidas to be experienced in the area of motor-cross and an impressive witness. 110 Mr Carrero's recommendations and the views of Mr Schnerring, an expert, were criticised by experts Messrs Keramidas and Hall on the basis that highway traffic standards should not be applied to racetracks. Mr Schnerring reported that trackside safety management was well-below even the clear zone or road safety requirements of public roads. He considered that crashes were more likely on racetracks than on public roads. Where motorcycles are involved, vulnerable riders are directly exposed to trackside hazards, and trackside safety standards should therefore at the very least meet those of public roads. He stated that desirably they should exceed them substantially. Clear zone requirements for public roads where vehicle speeds of 100 kilometres per hour can be expected to be a minimum of 6 metres and a desirable distance of 9 metres. However, it is important to note that this accident occurred on a motor-cross racetrack not a public road. Mr Keramidas disagreed with the view of Mr Schnerring and said that the protocols and standards relating to clear zones and hazard management were not applicable to race tracks and in particular this type of motor-cross track. I agree with the view expressed by Mr Keramidas. 111 According to Mr Keramidas, the figure of 20 metres clearance zone does not appear in Act, Regulations or Bylaws. At an international level, a minimum clear zone of 1 metre is required (Hall). According to Mr Hall, a width of 2-3 metres clear zone is considered adequate in most instances. However, in this case, a clear zone of 4-5 metres would have been more adequate after the dip in the straight. If the clear zone were taken to be 2-3 metres, a protective barrier would have been necessary, but if the appropriate clear zone were 4-5 metres, protective barriers would not have been necessary. Typically, protective barriers are constructed to a height of 1 to 1½ metres with 1.2 metres being the most common height. 112 In his initial report Mr Keramidas expressed the opinion that the track, particularly in the immediate vicinity of the incident, would have been considered safe under track guidelines. Mr Keramidas was the only expert who viewed the track (t 521.20-21), but at the time of the view, alterations had been made to the track. Mr Keramidas reached the conclusion that the likely cause of the accident appeared to have been the culmination of two separate impacts between the plaintiff's motorcycle and those of two other riders. This is in accordance with my findings.

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113 In cross-examination, Mr Keramidas agreed that a group of trees in the area where evidence had been given that the crash occurred were within 3 metres of the track. He accepted that it was foreseeable that on a safe stopping distance of 32 metres, someone could hit the group of trees in the course of an accident. However he Mr Keramidas disagreed that the plaintiff had no chance of avoiding collision with the trees stating that it depended on his "departure angle" (t 508 - 509.10). He did accept that some action should have been taken to remove the smaller of two trees where Mrs Armstrong said the accident occurred (t.515.5-11). I cannot say, on the balance of probabilities, that it was more probable than not that the plaintiff hit the smaller of the two trees. 114 Mr Hall is an experienced motor-cross competitor and has assisted in the inspection and construction of motor-cross tracks in Australia and abroad (t 568.44-55). In cross-examination, it was put to Mr Hall that on his calculations, the collision that led to the plaintiff's injury occurred 70 metres from the start despite the absence of any evidence in the case giving rise to that suggestion (t 572.13-31). Moreover, his calculations would place the plaintiff's body as coming to rest just on or over the crest which is where the plaintiff's mother put him (t 574.23-31; 577.21-31). Mr Hall agreed that on his calculations, the area featured in Ex HH showing two trees just a small distance on from the crest would be where the plaintiff's body would be expected to be found (t 576.11-35). Mr Hall agrees with the position identified by Mrs Armstrong as being the place where the plaintiff came to rest. I place less weight on this view as it is based on an assumption that the collision occurred at 70 metres from the start. I make no such finding. 115 From this evidence, the plaintiff was lying near the butt of a large tree possibly with his legs as close to 1 to 2 metres from the tree. Even if I was to find that the plaintiff came to rest in the position indicated by Mr Lamb, I could not on the balance of probabilities identify the precise tree with which the plaintiff collided. On the preponderance of witness evidence, I am unable to find on the balance of probabilities which tree the plaintiff hit, nor am I satisfied that the tree was in fact within 2 to 3 metres off the edge of the track. I have reached the conclusion, that the plaintiff has not proved on the balance of probabilities, firstly, which tree he hit and secondly, that the distance of the tree was within 2 to 3 metres from the edge of the track. I turn now to consider the allegations of negligence.

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Negligence 116 It is alleged that the first defendant breached its duty of care, in that it conducted an unlawful meeting. Mr Cole gave evidence that a permit was issued by Motorcycling Australia (Ex 32) to the HVMC in respect of an event to be held on 1 June 1999. The date was changed and permission to change the date was granted. One of the conditions for the event was that a Sport and Recreation licence for such purpose had to be issued. The Sport and Recreation licence was not granted nor was a valid licence on display at the racetrack. At the time of the accident, the requisite inspections by the Police and the Department of Sport and Recreation had not been carried out for the renewal of the licence. 117 Both Mr and Mrs Cole admitted that there was no valid licence issued by the Department of Sport and Recreation. According to Mr Cole, a renewal application had been received in May 1997 and a cheque had been sent off and cashed. However, by 13 July 1997 no licence had been received. Nevertheless, by that date Mr Cole had obtained a competition permit from Motorcycling New South Wales, which had been issued by the Far Northern Centre, located at Woolgoolga (t 782 -783). 118 Mrs Cole acknowledged that no licence could be issued at the time of the plaintiff's accident because inspection reports were outstanding for both Motor Cycling New South Wales and the New South Wales Police. She admitted that she knew inspections were required before any licence could be issued. She also acknowledged that a condition of having such a licence was that it be displayed in a position accessible to patrons, but that it could not be displayed at the time of Mr Armstrong's accident because none had been issued at that point. 119 At the time of the accident the first defendant did not hold a valid licence from the Department of Sport and Recreation. The race meeting held by the first defendant on 13 July 1997 was an unlawful meeting as it was in contravention of s 8 of the Act. However, this in itself does not establish that the first defendant was negligent. The unlawful meeting must in some way be causative of the plaintiff's injuries. It was not. 120 The next allegation of negligence was that there was a safety hazard around the perimeter of the track namely trees with substantial trunk sizes, vegetation and a tree with substantial trunk size within 20 metres of the track. As previously stated, I accept that there should be clear zone of 2 to 3 metres from the edge of the track not 20 metres. At the place where the plaintiff came to rest, the tree that the plaintiff hit was not located within the 2 to 3 metre clear zone. 121 In relation to properly providing or securing crash barriers at the perimeter of the track, Mr Schnerring suggested that if the appropriate clear zone was 2 to 3 metres, then the trees should have protective barriers on them constructed to a height of between 1 to 1.5 metres. Due to my earlier findings, the trees were further back than 3 metres from the edge of the track and as such did not require protective barriers around them. 122 The allegation that there may have been too many participants has already been discussed. The track was licensed for 20 participants and it was probable that there were 11 competitors in the race. I have accepted the expert views of Mr Keramidas and Mr Keast that the track in the area where the accident occurred was safe and in satisfactory condition for conducting motor-cross racing. The areas identified by Mr Keast and those identified by Mr Keramidas, did not cause the plaintiff's accident and injuries. It is my view that the defendant discharged their duties as they took all reasonable steps that the participants in the race would not be exposed to dangers in the physical set up or condition of the racetrack. For these reasons, the plaintiff's claim fails. There will be a verdict and judgment for the defendants. As such, it is unnecessary to deal with the issues of contributory negligence, volenti and the indemnity pleading. 123 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendants' costs.